WHITTY v. WEEDIN, Commissioner of Immigration, 68 F.2d 127

GARRECHT, Circuit Judge. Appellant, Ernest James Whitty, was a native of England, reached manhood and was married there. In 1910 he emigrated to Canada, leaving his wife and children in England. Secúring work in Canada, he sent money back to England, from time to time, for their support. He learned, so he testified before the Board, of the continued infidelity of his wife, which he asserted was his reason for leaving England. He married in Canada in 1910, without having secured a divorce from the first wife.

He was arrested in Victoria, British Columbia, in May of 1914, convicted of the crime of bigamy and sentenced to one year’s imprisonment, of which sentence he served ten months. He claims that shortly after his release from prison be entered the United States, through the port of Seattle, Wash., coming aboard tbe Canadian Pacific Steamer Princess Adelaide. There was no record found or produced to substantiate this claim. Following this he divorced his first wife and then went through the fomn of remarriage to his second wife, and later she divorced Mm.

He married again, hut at the time deportation proceedings were instituted, he was not living with his wife. He as-serfs also that he took out his first naturalization papers in 1916 or 1917, which he permitted to lapse. In 1925 he again took out first papers. He claims to have left the United States three times for short visits to Canada, and fixed 1928 as the year of his last entry into the United States, at which time he was not in possession of an unexpired immigration visé. On November 5,1931, he applied for regjuration under the Act of March 2, 1929 (45 gtat. 1512 [gee 8 USCA § 106a]).

Upon' kis statements made in connection with the hearing had on the said application a warrant for his arrest was issued March 1,1932, charging that he was subject to deportation under the provisions‘of the Immigration Act of May 2(6,1924 (43 Stat. 153 [see

section 13] the ac^ [8 USCA § 213]), in that at the time ^ last ©utry he was not in possession of an unexpired immigration visé, and also that he kad keen found in the United States' in violation of the Immigration Act of February 5, 1917 (section 3 [8 USCA § 136]), for tbe reason that “he has been convicted of, or admits having committed, a felony or other crime, or misdemeanor involving moral turpitude, prior to entry into, tbe United States, to wit: bigamy.” Under authority of said . , / • warrant he was duly arrested and given a , , A ., ,? ■, hearing, and upon the evidence adduced a warrant of deportation was issued July 29, 1932_ n . ^ allen hereupon petitioned for a writ °f babeas eoijus and to the return to the sbow cauf Torder tb° States Commis- “ as a tbereof tbe °* the deportation proceedmgs against the said petitioner. ^ In paragraph V of the petition for the writ of habeas corpus, petitioner, among other things, alleged: That with respect to the charge of the commission of a crime involving moral turpitude before his entry, the ree-ord shows without dispute the facts as follows: That prior to the petitioner’s leaving England in 1910 his wife had been unfaithful to him on a number of occasions.

Her conduct was a matter of common knowledge in the community, and was reported to Mr. Whitty by a number of neighbors. That, ae-eordingly, he planned to go to Canada to found a new home away from the surroundings and associations which he believed were responsible for his wife’s drunkenness and her infidelity, and it was planned that she should come and bring tbe children when he had established a home.

That with this purpose in view he went to Canada and from time to time sent funds home to his wife for her support and for the support of the children, That she continued her misconduct as before, and in 1913 the petitioner was informed by bis brother that she had given birth to two children in his absence and was living with the man who had fathered the children. That thereafter and prior to his coining to this country he remarried. That the obtaining of a divorce in Canada was very expensive and he had not the funds with which to obtam one from his first wife.

That he was tried in Canada before coming to this country for hav-ins' committed the crime of bigamy and was ing eommittea me crime or Digamy ana was oun gui y. By

section 221 of title 8 USCA, the burden of proof is placed on the alien in deportation cases. ITenee it was incumbent upon the alien to show that he was lawfully admitted into the United States. In this he failed. There was no evidence other than the testimony of petitioner himself concerning the facts surrounding his first entry into this country on the date claimed.

True he testi-fled that ho had taken all steps required of him prior to his original entry into the United States, which ho stated was for the purpose of establishing a permanent residence; that he paid a head tax and had receipt issued to him; that he kept this receipt for many years, but that it was lost some years ago; that he distinctly remembered his arrival, in that it was the evening preceding July 4th of that year. Other witnesses appeared and testified as to bis character, but that testimony is not material hero, we being now concerned only with his lawful entry.

The evidence upon he-half of the government was negative, consisting in the showing that there was no record of any sort of Mr. Whitty’s entry into this country on the date when he first claims to have come from Canada, nor any record of his visits to Canada after coming to this coun- . ™ On these facts and upon bis own admission that ho had been convicted of bigamy in Canada prior to his original entry into this country, the writ of habeas corpus was denle(l- Seetion 13 of the Immigration Aet of 1924 (43 Stat. 153 [8 USCA § 213]) provides: “(

a) No immigrant shall be admitted to the United States unless he (1) has an unexpired immigration visa, * * * and (4) is otherwise admissible under the immigration laws. “(

b) In such classes of cases and under such conditions as may be by regulations proscribed immigrants who have been legally admitted to the United States and who depart therefrom temporarily may be admitted to the United States without being required to obtain an immigration visa,”

Section 4 of the same act (8 USCA § 204) provides: “When used in this subchapter the term ‘nonquota immigrant.* means — * * * “(

b) An immigrant previously lawfully ^jj^tted to the United States, who is re-fojrning from a temporary visit abroad.” Rul° 3* sub<L F> Par- ^ of tlie Tmmigra- ^ ^ ^ when the appellant returned from his visit to Canada in 1928, provides: “Ho immigrant, whether a quota munigrant or non-quota immigrant, of any nationality, shall be admitted to the United States unless such immigrant shall present to tbe ProPf Motion 0ffieia1’ f,tlie porí of an ™mgration visa, duly issued aad authenticated by an American consular P^ed, that 2) aliens who have be® previously lawfully admitted to the Umted State and who are returning from a temporary visit of not more than S1x months *o Canada, * * * shal bo permitted to ^«United States without an immigra, 11011 visa.

Section 23 of the Immigration Act of 1924 (8 USCA § 221) provides as follows: “ * * * And in any deportation pro-oeeding against any alien the burden of proof shall bo upon such alien to show that he en-terod the United States lawfully, and the time, place, and manner of such entry into- the United States, but in presenting such proof he shall be entitled to the production of his immigration visa, if any, or of other documents concerning such entry, in the custody of the Department of Labor.” j. m , The Act of February 20,1907, as arnmd-ed (34 Stat.

part 1, page 898; 36 Stat. 263; 37 Stat. 736) among other things provided for a head tax to be collected by the master, agent, owner, or consignee of the vessel bringing aliens to the United States. The same aet also provides that manifests be furnished of all passengers arriving by steamer.

Subdivision 3 B of rule 12 of the Immigration Rules of November 15,1911, provides among other things that aliens of the class mentioned shall be denied examination until they present to the examining officers a certificate from a duly appointed agent of the transportation company, and the same rules also provide, in substance, that aliens found admissible by the inspectors or boards situated at the seaports shall be furnished with a certificate of identity prepared on the form provided by the Bureau, signed by the United States Commissioner of Immigration for Canada, and that the same should he presented and surrendered when admission at any of the ports of entry is sought.

As indicated by the evidence, the sub-stanee of which we have quoted, no record of the compliance with any of the duties imposed upon appellant under the Immigration Law was found or produced, either through the offices of the Canadian or United States immigration officials, nor from the steamship company, upon a steamer of whose line he is supposed to have entered this country. His testimony as to the manner of his original entry was uncorroborated in any way, and there was a complete absence of any records showing that he had lawfully entered in the manner required by law. According to

section 23 of the Inmigration Act of 1924 (8 USCA § 221), supra, the burden was upon the appellant to show his lawful entry. We have examined the eases cited by appellant, concerning situations similar to this, where the alien claimed to have entered this country legally, and where the records of his entry eould not be found. The eases principally relied upon are U. S. ex rel. Linklater v. Commissioner (D. C.) 36 F.(2d) 239, and U. S. ex rel. Shore v. Day (D. C.) 36 F.(2d) 264. Both of these cases, decided by the same District Judge, lend support to appellant’s contention. However, the ease of Shore v.

Day, supra, was subsequently reversed by the Circuit Court of Appeals in U. S. ex rel. Shore v. Corsi, 61 F.(2d) 761. Apparently the Linldater Case was not appealed, but as an authority it has been greatly weakened, if not directly overruled by the reversal of the Shore Case.

Moreover the Linklater Case, in so far as it is-applicable to the facts of the ease at bar, also loses some of its weight when we note that the absence of, or failure of the government to produce, the records of the alien’s claimed entry in that case, was possibly due to the fact that that ease arose during a period when by custom or lack of rules it was not required to make a record of the entry of aliens into this country, as was required at the time appellant herein claims to have entered.

As opposed to the support which either of these two cases may give to appellant’s contention are numerous eases, which hold that the decision of the immigration officials is conclusive on matters of fact, Gegiow v. Uhl, 239 U. S. 3, 36 S. Ct. 2, 60 L. Ed. 114; U. S. ex rel. Mantler v. Commissioner (C. C. A.) 3 F.(2d) 234; also eases holding that immigration officials are not bound to believe the testimony of the alien, Wong Fat Shuen v. Nagle, 7 F.(2d) 611 (C. C. A. 9); also U. S. ex rel. Tisi v. Tod, 264 U. S. 131, 44 S. Ct. 260, 68 L.

Ed. 590, wherein the Supreme Court of the United States, among other things, said. “ * * * The correctness of the judgment of the lower court is not to be determined by inquiring whether the conclusion drawn by the Secretary of Labor from the evidence was correct, or by deciding -whether the evidence was such that, if introduced in a court of law, it would be held legally sufficient to prove the fact found.” jjjg point to be determined by us is whether the appellant had a fair hearing, and, jf appears from the record that he had, we are not at liberty to disturb the decision of the lower court.

The truth of the facts is for the determination of the immigration tribuuals, and where its procedure and decision are not arbitrary or unreasonable, and the alien lias had a fair hearing, the result must be aceeptecL. Flynn ex rel. Chin Tai Sing v. Tillinghast, 35 F.(2d) 347 (C. C. A. 1); U. S. ex rel. Shore v. Corsi (C. C. A.) 61 F.(2d) 761, supra. -We therefore conclude that the decision of the lower court on the question of the alien’s entry into this country must be affirmed as correct.

M ,YP°n tte °íher T^stim presented as to whethar or not the crime of bigamy, admitted ^avejieen committed by appellant m Canada °re coming to this country, and for wlueh he served a term of imprisonment, was such a «"f® as mY°lved m°raUurpitude, the ®f«® clt/d ^ appellant claiming to indicate ttat certain Conditions a crime of big-am/ aot mv°lve turpitude do not support Ins position The crime of big-amy mvolved moral turpitude, “It is the conduct ^ of tlm defendant in marrying the second time which constitutes the crime and it is the abuse of this formal an<f solemn contract which the law forbids because of its outrage on public decency.” 3 R.

C. L. 804. By the law of Canada bigamy is declared a erime and serious,nature is ™TOaJed ** the: provision for punishment attached to conyiction by imprisonment m the penitentiary ^ a ,^e™1. seYen y63-13- It is no less a lnJus> country, as was well said by Mr. Justlce Field: “Bigamy and polygamy are crimes by the laws of all civilized and Christian countries, They are crimes by the laws of the United States. * * * They tend to destroy the purity of the marriage relation, to disturb the peace oI~ families, to degrade woman, and to deba.se man.

Few crimes are more pernicious to the best interests of soeiety, and receive more general or more deserved punishment.'' Davis v. Beason, 133 U. S. 333, 341, 10 S. Ct. 299, 300, 33 L. Ed. 637. The order under review is affirmed.